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Covert Recording

Last night was the Annual Family Justice Council Debate – and this year the topic was covert recording. The motion was ‘nothing to hide – what’s wrong with covert recording?’ Hannah Markham QC and I were allocated to the ‘pro’ side of the debate, and HHJ Lazarus and Debbie Singleton to the anti. In reality though we all shared similar views about the reasons behind covert recording (mistrust) and the need to both consider it before dismissing it, the need to manage it carefully to ensure it did not distract the court rather than help it, and the particular issues around recording children.

What emerged was a broad consensus that one way forward would be some form of routine recording of meetings with professionals – not as the primary record, but as a safeguard to check back to if there were a dispute about what was said or done or about the accuracy of a minute of a meeting or a report based upon an interview. Of course this hit the familiar brick wall of resources.

The debate was an opportunity for the FJC to tell the audience about the proposed guidance on this issue – that is a work in progress and no doubt this evening’s contributions will feed into it (I am going to be on the working group looking at this in due course in my capacity as chair of The Transparency Project). But my initial thoughts on suggestions that the guidance might somehow deal with these issues of local authorities or cafcass routinely making recordings to obviate the need for parents to do so are that a) this is not really a matter in the first instance for the FJC which is focusing on court proceedings not social work, but is a matter for social work / CAFCASS leadership and that b) the restrictions on data controllers and the state in terms of surveillance probably mean that primary legislation would be needed to make any widespread scheme workable. Getting from the idea in principle to some rolled out scheme would, it seems to me, be a mammoth undertaking – and not one over which the FJC has jurisdiction.

I want to thank all the many people who replied to my call for feedback on why people record and what professionals think about it – I used many of your contributions (anonymously) in my slideshow – which is here

I think it encapsulates the breadth of reasons why people are driven to record, and the variety of responses that they receive. I think it demonstrates how the responses to parents wishing to record can affect the trajectory of a case.

There were some valuable contributions from the floor at the debate, although it was a shame there was not sufficient time to allow for interaction between the panel and audience. One point that was raised and on which I responded was one about the integrity of transcripts of hearings and judgments. That is something I intend to return to as it is a topic that has recently been raised by Louise Tickle, causing some degree of consternation, and where I think the debate would be enhanced by an actual understanding of the processes and law which may not be obvious or instinctively sensible to the outsider. I have a long blog post in my head, and am simply waiting for enough breathing space to get it out and onto a screen….

A couple of disembodied thoughts that I am left with that bubbled up during the debate but that I didn’t have time to get off my chest yesterday :

as lawyers we advise our clients to keep a record of events – to make notes, diaries etc. People don’t *do* paper diaries any more (well, not unless they are my 8 year old son). People document every aspect of their lives using their phones. We’ve all dealt with cases where it is said a diary is self serving, or edited or not really contemporaneous but manufactured later. And cases where the diary is compelling. In many respects audio and video recording is no different. We are I think just less confident about how we establish veracity in a digital document. But isn’t a verifiable digital record far more objective than a diary written by one participant?

the increase in litigants in person as a result in the cuts to legal aid is relevant to this issue in a private law context. When the majority of litigants were represented, recordings they had made would be produced in conference with solicitor or counsel – and either the client would be advised that they were not relevant and the issue would not arise – or they would be produced and an application would be made for them to be relied upon as relevant material in good time. In some cases careful thought would need to be given to the guidance on disclosure of unhelpful material in children proceedings – whether before or after viewing. Many of us have dealt with cases where the client has enthusiastically persuaded us to listen to their devastating recording that is going to win the case, only to watch the blood drain from our faces as we realise we are going to have to have ‘that talk’ with our client about our duty to disclose the recording that will damage their case. That filtering of evidence is not happening now and I suspect recordings made of children or ex partners at handover are being produced increasingly late and chaotically – and only once a litigant has, in the absence of advice, built up a stash of what they genuinely believe to be helpful material.

Anyway, those are my slightly random thoughts about covert recording… I’ll post a link to the transcript and podcast when it is made available by the FJC.

UPDATE 20 DEC 2018 : The Transcript is now up here (although I think the link to the podcast is not quite working yet).

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6 thoughts on “Covert Recording”

Okaaaayyyyy, taking on board what you’ve said about the issues involved in covert recording.. yes I agree there are issues and pros and cons for covert recording. And those issues are not easily solvable from a judical perspective, and covert recording with its issues is only an issue now because it is being fuelled by parental desperation (for various reasons).

What needs to be understood, is that most times that parents are appearing in a Family Court, they are being accused by either social services or an ex-partner of the CRIMINAL offence of causing actual or possibily of actual harm to their child/ren one way or the other.

If that parent were thus accused in a criminal court, and there was evidence from a police body cam, then would there be the same reluctance by the judiciary to accept the submission of that evidence as being a valid submission to court?
I doubt it.

Therein lies some problems for me. Or rather, judical issues.
1. There is a lack of parity between the two court systems for the same offence i.e. the criminal offence of harm to a child
2. Specifically there is a disparity of evidential standards between the two court systems
3. These disparities discrimate against the participants in both public and private family law cases and against the children who are the subject of the proceedings (yet this discrimation in the family court is seen as acceptable, legitimate and legal – rolls eyes at this point)

The real bottom line, bottom dollar issue for me, (having experienced 2 1/2 years of private 16 FC hearings before 13 different judges, with the first 10 being as LIP and the remaining 6 with a solicitor, and undergoing section 37, 47 and 7 reports across that time, so I’ve lots of time to asses and think) comes down to an issue of evidence and evidential standards. And that IS within the jurisdiction of the legal system.

Why is this issue paramount?
For the protection of the parent being accused of one or more criminal offences in relation to their child be they a respondant or appellant
And for the outright protection of the child – many of whom are damaged for life by virue of being removed from an innocent loving parent who was NOT in actual fact harming or posing any danger to their child but were unable to successfully evidence themselves against the criminal charge of harm or possible future harm to their child because of the aforementioned disparity of evidential standards in the family court system.
And for the protection of the integrity of any social workers involved in a case (we had 8 inclusive of the line manager and case manager – some of whom had different views and conclusions to the other social workers involved in the case)

As a parent in the family court accused of a criminal offence you – well most- are desperate to protect their child and show the truth of the matter.

Under prevailing conditions it is like being thrown into a river with your hands bound and your feet encased in concrete. The majority of the time you can’t beathe even let alone think straight. You do feel literally like you are drowning. The ‘playing field’ isn’t just ‘not level’, it’s on a 45 degree downward slope, and the only thing stopping you rolling into that river, is the brick wall you’re going to hit instead.

As a parent who is desperate to protect your child and prove yourself innocent agaist the allegations made, what are you supposed to do? What would you do? What would ‘me learned lud’ do in the same circumstances? You’d garner valid evidence ANY which way you could. Including making recordings.

(On the issue of diaries and their validity and the issue of whether these have been altered later – this seems to be an issue for the family courts, but yet again in a criminal court, probably would not be, as contemporous notes are often admitted and accepted as evidence, or so I understand. So another disparity victimising respondents and children?)

So, we’re back to recordings. Whilst many families currently feel like this is their last resort (or maybe first) and a valid option (me included), I also see it as a red herring.

It’s red herring because it is taking focus and will away from the question of social workers wearing body cameras (for the benefit of all parties involved).
Body cams have made significant impact in the criminal justice system and would do so in the family justice system, but without the need to match similar evidential standards there simply isn’t the judical will to require it to happen.
Sort of a judical laisse-faire aka laziness. After all who needs to go to those lengths when judgements can be made on the ‘balance of probabilities’ even though it involves a criminal offence of harm to a child? Even though it is about protecting children?
if you detect a note of sarcasm, then you’re not fully awake, cos it’s an entire piano scale of it. So please wake up and smell the coffee.

The argument against body cams is that there aren’t the resources blah de blah de blah. I remember the same arguments being used about the introduction of police body cams….. do I need to say any more on how positive THAT has been all round? No of course I don’t cos it is is obvious now. I’m sure we’ll all agree on that.

And it doesn’t fall under the remit of the judical system to tool up social workers with body cam anyway I hear you say? Eggggssscuse me… no, not right this minute, BUT as with police body cams IT CAN BE LEGISLATED FOR.
All it requires is a will and then there is a way, even if that way means – as it should – a concurrent change in legislation to bring parity of evidential standards to the family courts also.
In summary – as professionals, forget covert recordings – focus time, energy and money on getting the law changed for evidence standards and the wearing of body cams and deal with the issues involved in doing so in the same way the police deal them – ask them to consult and advise even in the process.

Since 2015 Police Directions and guidance includes that officers attending any report of DV should be wearing a body cam. This is so welcome! Do the judiciary refuse to accept any of these relevent police body cam recordings in say a ‘finding of fact’ hearing? Or do they see them as relevent and admissable? Cos if my learned me’luds do, then there is certainly no case to answer for refuting the value of body cams on social workers!
Case made.

(P.S. To be perfectly frank, even if body cams become mandated, I would STILL make my own overt or even covert recordings of meetings with social workers. That’s what personal dealings with all those social workers taught me and after getting multiple complaints upheld against them. And this, is a now a complete lack of trust in the system from some who themself spent 7 years working in the criminal justice system as part of NOMS – this is what the personal experience of being ‘on the other side’ has done to me.)

(P.P.S Lucy, I so wish you wouldn’t make these post late at night. :/ there I was all chilled out from handbell ringing practice of xmas carols this afternoon, and ready for bed…. and now two hours later …. I have whirling dervishes in my head again :/ )

A debate long overdue. Trust is often the first casualty in cases concerning children, with unjustified allegations or inaccurate, subjective recollection – not exclusively on the part of the parents. Digital recording is so simple and puts a brake on runaway complaints.

When SW abuse a child, even in a court building (proven by the LGO ordered enquiry by the council into the council, so these were the councils own conclusions), then lie about it, call the child a liar, say they heard such from a judge (prepared to impugn a judge) and then after repeatedly denying such find out the child had been smart enough to record it all.
I can well attest to SW’s not just being economical with the actualite, but committing serious and significant child abuse and then being prepared to lie in an attempt to cover their tracks at an individual and corporate level, then roll on mandatory recording. I remember one SW telling me ‘I don’t like email’ earlier in proceedings, I know now exactly why.
Sadly I can report, with evidence, of lawyers lying too, so thankfully I learned from my child, and recorded this as well.